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Kerr and Doob: What happened to the Liberal promise of criminal justice system reform?

Author of the article:

Lisa Kerr, Anthony N. Doob

Publishing date:

January 20, 2020 • 3 minute read

Canada's criminal justice system needs improvement - but the Liberal government has been slow to act.Photo by Ian MacAlpine/ Ian MacAlpine/Whig-StandardFive years ago, we wrote a column in the Ottawa Citizen outlining how the Stephen Harper government used criminal justice policy for political purposes. Many changes were made. None improved safety. Many created inequities. Most created a less coherent and more unprincipled system.

In 2015, Prime Minister Justin Trudeau instructed his justice minister, in her mandate letter, to “conduct a review of the changes in our criminal justice system … to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system.” It never happened.

Distroscale

Here, we return to Harper “reforms” that still need attention.

Most obvious are the 50+ mandatory minimum penalties added to the Criminal Code. In 2015 and 2016, the Supreme Court struck down two mandatory minimums, indicating many more are likely invalid. Liberal inaction has left the task of adjudicating them, one by one, to lower courts. The result: delay, uncertainty and extraordinary cost.

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The prime minister promised to implement all recommendations of the Truth and Reconciliation Commission in federal jurisdiction: #32 suggests allowing judges to depart from mandatory minimums and similar restrictions. The former minister stated that she was reviewing all mandatories, noting they contributed to court backlogs. The result: crickets.

Harper’s government narrowed Canadians’ ability to get pardons after demonstrating that they had stopped offending. Based on data from Public Safety Canada, about 23 per cent of adult Canadian males have criminal records. The Liberal response: a fee increase.

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Harper’s government narrowed Canadians’ ability to get pardons after demonstrating that they had stopped offending. The Liberal response: a fee increase.

The Harper government also made changes to federal correctional programs that the Liberals have failed to review and fix. For example, prior to the Harper decade, Canada’s successful “accelerated parole” program allowed certain non-violent, first-time offenders to be released from our expensive, criminogenic penitentiaries into productive forms of community supervision. Between 2003 and 2008, before its elimination, 4,191 prisoners were released on this program. Fewer than one per cent were reincarcerated for violent offences. To put this in context, 742,494 adults were charged in Canada with violent offences in this period. Twenty-nine of them (0.004 per cent) were out on this form of release.

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Sensible criminal justice reform is never easy or a high priority. But most Canadians would probably support a careful review and eventual action on these matters, given the costs and significance of our justice system.

Instead, a little government document (16 pages long, counting the cover, blank pages, etc., yet self-described as a “comprehensive” review of Canada’s criminal justice system) was released quietly last summer. It is described as “the first of its kind since 1982” – ignoring many truly comprehensive reviews since 1982. The (current) minister stated boldly that the review found “consensus that the system requires major change.” The review recommends reform on both pardons and mandatory minimums, observing “a degree of consensus” that pardons should be made more available and sentencing judges should have more discretion.

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Acknowledging that change is necessary and undertaking it are very different: The 2019 mandate letter advocates little things, not major change. The justice minister is told to “Work with the Minister of Seniors to create a national definition of elder abuse.” This suggestion rivals the former justice minister’s 2018 assertion to Parliament that she was providing Canada with an “evidence based” definition of bestiality, an offence accounting for one of the 636,714 criminal incidents resulting in criminal charges in 2017.

The prime minister’s 2019 mandate letter to the public safety minister doesn’t even mention penitentiaries or federal community supervision programs. Apparently, reforms aren’t seen as necessary for a penitentiary system costing more than $2 billion annually that doesn’t even ensure inmate access to training or education beyond a high school diploma.

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Trudeau asserts in this same letter that “There remains no more important relationship to me and to Canada than the one with Indigenous Peoples.” Indigenous People’s over-representation in penitentiaries calls for attention to correctional programs.

Instead, criminal justice reform has faded as a political priority since 2015, in the absence of a Conservative government for the Liberals to define themselves against.